Persuasive Authority Beyond the State: A Theoretical Analysis of Transnational Corporate Social Responsibility Norms as Legal Reasons within Positive Legal Systems

Abstract

The purpose of this paper is to elucidate by recourse to legal theory whether and how transnational corporate social responsibility (“CSR”) norms may be related to positive legal systems and to the practice of law. We will seek to develop a theoretical understanding of the role transnational CSR norms can, do, and ought to play within processes of legal reasoning, particularly from the theoretical starting points offered by analytical/ positivist, and discursive theories of law. It will be argued that transnational CSR norms serve as ready standards of conduct, that can provide persuasive and justifying reasons within a legal discourse. Razian positivism clearly elucidates how all positive legal systems are open systems. This means that external norms, including quite possibly transnational CSR norms, may come to be used within positive legal systems to define the scope of such systems and the parameters of legal obligation. This basic trait of positive legal systems makes transnational CSR norms relatable to legal obligation within positive systems of law. For such a relation to occur, however, there must exist an institutional nexus between the transnational norm and the positive legal system itself. That nexus will arise where the transnational norm is actually applied in making conclusive determinations of legal situations, by the norm applying institutions of a positive legal system. In certain circumstances, transnational CSR norms exhibiting traits such as “efficacy” and “authority”, operating as systems of social control, may be used as persuasive and justifying legal reasons by norm-applying institutions. In this way they can be seen to exist as a form of prima facie persuasive authority beyond the State. Any suggestion that transnational CSR norms are not relevant to the practice of law within a positive legal system is refutable on this basis. Instead, we will conclude that transnational CSR norms may possess a prima facie legal character that makes them readily utilizable within processes of legal argumentation, and very salient for legal practitioners and theorists alike.